M USARRAT HILALI, J. This criminal appeal has been directed against judgment dated 11.08.2021 passed by learned Judge, Special Court, Takht Bai, whereby the present appellant, involved in case FIR No.654, dated 02.08.2019, under section 9(c) CNSA of Police Station, Sher Garh convicted and sentenced to six years, besides payment of fine of Rs.1,00,000/- or in default thereof to further undergo SI for six months with benefit of section 382-B, Cr.P.C.
2. As per prosecution story, on 02.08.2019 Sartaj Khan SI was on patrol duty when received information as to smuggling of chars for selling purpose by one Momin. alias Momany, thus, in the backdrop, he rushed to Ghano Shah Jalala, started surveillance of area, in the meantime, at 14.40 hours, a suspected person having a plastic shopper in his left hand arrived, search of which led to the recovery of four (04) packets chars, total 4000 grams. The person disclosed his name as Momin alias Mominay (the appellant), consequently, the above referred case FIR was registered against him.
3. On completion of investigation, the accused was sent to the court of learned Judge, Special Court, Takht Bai, for trial, who, on its conclusion, convicted and sentenced him under section 9 (c)
CNSA for six years, besides payment of fine of rupees one lac, or in default to undergo further SI for six months with benefit of section 382-B, Cr.P.C., vide judgment dated 11.08.2021, hence this appeal.
4. Learned counsel for the appellant argued that there are material contradictions and discrepancies in the evidence produced by the prosecution, therefore, the charge against the appellant cannot be said to have been proved beyond reasonable doubt. He further submitted that there is ambiguity as to how and through whom the samples separated at the spot for FSL were transmitted to the Moharrir from the spot and in this respect evidence of Seizing Officer (PW- 1) is silent and even otherwise the FSL report, even if it is in positive, cannot be relied upon because the same does not contain the necessary protocols of the tests applied.
5. As against that learned AAG appearing on behalf of the State argued that the evidence furnished by the PWs is consistent on material particulars of the case, therefore, it cannot be doubted on account of minor and insignificant contradictions and that too, when there is no mala fide or enmity on the part of PWs to falsely implicate the appellant.
6. We have gone through the record carefully and considered the submissions of the learned counsel for the parties.
7. It appears from the record that the appellant was arrested along with the alleged illegal stuff on 02.08.2019 at 14.40 hours, while the murasilla was drafted on the same day at 15.10 hours, but Islam (PW-2), who is marginal witness to the recovery memo Ex. PW 1/1, stated in cross examination that they left the spot at 03.00 p.m and proceeded to the police station. When the police party had left the spot at 03.00 p.m, then how the complainant drafted murasilla at 15.10 hours (03.10 p.m) on the spot. Again, according to PW-1, he went out of the PP for the gusht duty at 10.00 a.m, while PW-2 stated that they left for the gusht from PP at 12.00 a.m. Likewise, the monogram affixed on the case property and samples was with the name of "TA" which is not the abbreviation of the name of the Seizing officer, namely, Siraj Khan. For clarification of the said uncertainty, the defence counsel specifically cross examined PW-1, who admitted in his statement that monogram of his name, is "SJ", while he has affixed the monogram with the name of "TA, but he showed his ignorance about the fact that at whose police officer's name the said monogram was available. Also, the seizing officer (PW-1) during cross examination stated that the case property was in the packets which were four (04) in numbers. According to his statement, all the slabs were of the same weight and when the case property was de-sealed in the court, the three packets were in single slab while in one packet there were two slabs. Indeed, there is no apparent malice or mala fide on the part of the PWs to falsely implicate, the appellant but the way they have contradicted each other is suggestive of the fact that either one or the other was not present on the spot at the relevant time and the occurrence has not taken place in the mode and manner as furnished by the prosecution.
The discrepancies appearing in the evidence of the prosecution evidence cannot be termed as minor and insignificant, thus, it cannot be held that the prosecution has succeeded to bring home the charge against the appellant.
8. No doubt, FSL report Ex.PK is in positive but the same is also not reliable for the reasons that neither the chain of sending the representative samples to Moharrir from the spot is established nor the report of the Forensic Science laboratory carries the requisite protocols and it has been well settled by the august Supreme Court in a plethora of judgments that any break in the chain of safe custody or lapse in the control of possession of the sample or lack of full protocols with respect to the testes applied for, render such report of FSL unreliable.
9. It is universally recognized principle of law that conviction must be based on unimpeachable evidence and certainty of guilt and any doubt that arises in the prosecution case must be resolved in favour of the accused, therefore, by extending benefit of doubt, this appeal is allowed, conviction and sentences recorded by the learned trial Judge are set-aside and the appellant is acquitted of the charge levelled against him. He be set at liberty forthwith, if not required in any other case.
Above are the reasons of short order of even date. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.